Opinion
July 11, 1983
In a matrimonial action, plaintiff appeals (1) from so much of an order of the Supreme Court, Suffolk County (Rohl, J.), dated December 14, 1982, as granted that portion of the defendant's motion which sought the dismissal of plaintiff's second and third causes of action for divorce on the grounds of res judicata and failure to state a cause of action, and (2) as limited by her brief, from so much of a further order of the same court, dated February 15, 1983, as upon reargument, adhered to its original determination. Appeal from order dated December 14, 1982, dismissed. Said order was superseded by the order entered upon reargument. Order dated February 15, 1983, reversed insofar as appealed from, order dated December 14, 1982, vacated insofar as appealed from and defendant's motion denied in its entirety. Plaintiff is awarded one bill of costs. Although inartfully drafted, the instant complaint adequately pleads causes of action for actual and constructive abandonment based on the defendant's continued absence from the marital home and his continued refusal to have sexual relations with the plaintiff for a period of one or more years following the dismissal of the plaintiff's first matrimonial action (see Domestic Relations Law, § 170, subd [2]). Accordingly, the maintenance of the second and third causes of this action cannot be barred on res judicata principles (see Falconi v Falconi, 91 A.D.2d 1058; see, also, Carratu v Carratu, 50 N.Y.2d 941; cf. Marinelli v Marinelli, 88 A.D.2d 635). We have considered defendant's remaining contention and find it to be without merit. Lazer, J.P., Mangano, Gulotta and Niehoff, JJ., concur.